COLORADO COURT OF APPEALS 2016COA189

Court of Appeals No. 15CA0598 City and County of Denver District Court No. 14CV33637 Honorable R. Michael Mullins, Judge

Wendy Jane Stone,

Plaintiff-Appellant,

v. Life Time Fitness, Inc., a Minnesota corporation doing business in the State of

Colorado, d/b/a Life Time Fitness; Life Time Fitness Foundation; and LTF Club Operations Company, Inc.,

Defendants-Appellees.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division I Opinion by JUDGE MILLER

Taubman and Fox, JJ., concur

Announced December 29, 2016

Charles Welton P.C., Charles Welton, Denver, Colorado, for Plaintiff-Appellant

Markusson Green & Jarvis, John T. Mauro, H. Keith Jarvis, Denver, Colorado, for Defendants-Appellees

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¶ 1 In this action seeking recovery for personal injuries sustained

at a fitness club, plaintiff, Wendy Jane Stone, appeals the summary

judgment entered in favor of defendants, Life Time Fitness, Inc.; Life

Time Fitness Foundation; and LTF Club Operations Company, Inc.

(collectively, Life Time), on Stone’s negligence and Premises Liability

Act (PLA) claims based on injuries sustained when she tripped on a

hair dryer cord after washing her hands. The principal issue

presented on appeal is whether the district court correctly ruled

that Stone’s claims are contractually barred based on assumption

of risk and liability release language contained in a member usage

agreement (Agreement) she signed when she became a member of

Life Time.

¶ 2 We disagree with the district court’s conclusion that the

exculpatory provisions of the Agreement are valid as applied to

Stone’s PLA claim. Consequently, we reverse the judgment as to

that claim and remand the case for further proceedings. We affirm

the district court’s judgment on the negligence claim.

I. Background

¶ 3 Stone was a member of a Life Time fitness club located in

Centennial. According to the complaint, she sustained injuries in

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the women’s locker room after finishing a workout. Stone alleged

that she had washed her hands at a locker room sink and then

“turned to leave when she tripped on the blow dryer cord that was,

unbeknownst to her, hanging to the floor beneath the sink and

vanity counter top.” She caught her foot in the cord and fell to the

ground, fracturing her right ankle.

¶ 4 Stone alleged that allowing the blow dryer cord to hang below

the sink counter constituted a trip hazard and a dangerous

condition and that, by allowing the condition to exist, Life Time

failed to exercise reasonable care. She asserted a general

negligence claim and also a claim under Colorado’s PLA, section 13-

21-115, C.R.S. 2016.

¶ 5 Life Time moved for summary judgment, relying on

assumption of risk and liability release language contained in the

Agreement Stone signed when she joined Life Time. Life Time

argued that the Agreement was valid and enforceable, that it

expressly covered the type and circumstances of her injuries, and

that it barred Stone’s claims as a matter of law. A copy of the

Agreement appears in the Appendix to this opinion.

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¶ 6 After full briefing, the district court granted Life Time’s motion,

concluding that the Agreement was “valid and enforceable” and that

Stone had released Life Time from all the claims asserted in the

complaint.

II. Discussion

¶ 7 She contends that the district court, therefore, erred in

entering summary judgment and dismissing her action.

A. Summary Judgment Standards

¶ 8 Summary judgment is appropriate if the pleadings and

supporting documents establish that there is no genuine issue of

material fact and that the moving party is entitled to judgment as a

matter of law. Gagne v. Gagne, 2014 COA 127, ¶ 24; see C.R.C.P.

56(c). We review de novo an order granting a motion for summary

judgment. Gagne, ¶ 24; see Ranch O, LLC v. Colo. Cattlemen’s

Agric. Land Tr., 2015 COA 20, ¶ 12.

B. Negligence Claim

¶ 9 In her complaint, Stone alleged common law negligence and

PLA claims, and she pursues both claims on appeal. The trial

court’s summary judgment ruled in favor of Life Time without

distinguishing between Stone’s negligence and PLA claims. It

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simply concluded that the exculpatory clauses in the Agreement

were “valid and enforceable” and released Life Time from all claims

asserted against it.

¶ 10 We turn to the negligence claim first because we may affirm a

correct judgment for reasons different from those relied on by the

trial court. English v. Griffith, 99 P.3d 90, 92 (Colo. App. 2004).

¶ 11 The parties agree that the PLA applies to this case. In section

13-21-115(2), the statute provides:

In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section.

The PLA thus provides the sole remedy against landowners1 for

injuries on their property. Vigil v. Franklin, 103 P.3d 322, 328-29

(Colo. 2004); Wycoff v. Grace Cmty. Church of Assemblies of God,

251 P.3d 1260, 1265 (Colo. App. 2010). Similarly, it is well

1Section 13-21-115(1), C.R.S. 2016, defines “landowner” as including “a person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property.” In its answer, Life Time admitted that it owned and operated the club where Stone was injured and that the PLA governs her claims.

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established that the PLA abrogates common law negligence claims

against landowners. Legro v. Robinson, 2012 COA 182, ¶ 20, aff’d,

2014 CO 40.

¶ 12 Accordingly, albeit for reasons different from those expressed

by the trial court, we conclude that Stone could not bring a claim

for common law negligence, and the trial court therefore correctly

ruled against her on that claim. We now turn to the effect of the

exculpatory clauses in the Agreement on Stone’s PLA claim.

C. Application of Exculpatory Clauses to PLA Claim

¶ 13 As we understand Stone’s contentions, she does not dispute

that the exculpatory language in the Agreement would preclude her

from asserting claims under the PLA for any injuries she might

sustain when working out on a treadmill, stationary bicycle, or

other exercise equipment or playing racquetball. We therefore do

not address such claims. Instead, Stone argues that the

exculpatory clauses do not clearly and unambiguously apply to her

injuries incurred after washing her hands in the women’s locker

room. We agree.

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1. Law

¶ 14 “Generally, exculpatory agreements have long been

disfavored.” B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo.

1998). Determining the sufficiency and validity of an exculpatory

agreement is a question of law for the court. Id.; Jones v. Dressel,

623 P.2d 370, 375 (Colo. 1981). This analysis requires close

scrutiny of the agreement to ensure that the intent of the parties is

expressed in clear, unambiguous, and unequivocal language.

Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo.

2004). Our supreme court has explained:

To determine whether the intent of the parties is clearly and unambiguously expressed, we have previously examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.

Id.

¶ 15 Under Jones, a court must consider four factors in

determining whether an exculpatory agreement is valid: (1) the

existence of a duty to the public; (2) the nature of the service

performed; (3) whether the contract was fairly entered into; and (4)

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whether the intention of the parties was expressed in clear and

unambiguous language. 623 P.2d at 375.

2. Analysis

a. The First Three Jones Factors

¶ 16 The first three Jones factors provide little help for Stone’s

position. The supreme court has specified that no public duty is

implicated if a business provides recreational services. See

Chadwick, 100 P.3d at 467 (addressing guided hunting services and

noting that providers of recreational activities owe “no special duty

to the public”); Jones, 623 P.2d at 376-78 (skydiving services); see

also Hamill, 262 P.3d at 949 (addressing recreational camping

services and noting supreme court authority).

¶ 17 With regard to the second factor, the nature of the services

provided, courts have consistently deemed recreational services to

be neither essential nor a matter of practical necessity. See

Chadwick, 100 P.3d at 467; Hamill, 262 P.3d at 949; see also

Brooks v. Timberline Tours, Inc., 941 F. Supp. 959, 962 (D. Colo.

1996) (snowmobiling not a matter of practical necessity), aff’d, 127

F.3d 1273 (10th Cir. 1997); Lahey v. Covington, 964 F. Supp. 1440,

1445 (D. Colo. 1996) (whitewater rafting not an essential service),

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aff’d sub nom. Lahey v. Twin Lakes Expeditions, Inc., 113 F.3d 1246

(10th Cir. 1997). Stone attempts to distinguish those cases by

asserting that people join fitness centers “to promote their health,

not for the thrill of a dangerous recreational activity.” She cites no

authority for such a distinction, and we are not persuaded that

such activities as camping and horseback riding, at issue in the

cases cited above, are engaged in for a dangerous thrill as opposed

to the healthful benefits of outdoor exercise. Consequently, the

recreational nature of the services Life Time provides does not weigh

against upholding or enforcing the Agreement.

¶ 18 With respect to the third factor, a contract is fairly entered into

if one party is not at such an obvious disadvantage in bargaining

power that the effect of the contract is to place that party at the

mercy of the other party’s negligence. See Hamill, 262 P.3d at 949;

see also Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo.

1989). Possible examples of unfair disparity in bargaining power

include agreements between employers and employees and between

common carriers or public utilities and members of the public. See

Heil Valley Ranch, Inc., 784 P.2d at 784. However, this type of

unfair disparity is generally not implicated when a person contracts

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with a business providing recreational services. See id.; see also

Hamill, 262 P.3d at 949-50.

¶ 19 In evaluating fairness, courts also examine whether the

services provided could have been obtained elsewhere. Hamill, 262

P.3d at 950. Nothing in the record indicates that Stone could not

have taken her business elsewhere and joined a different fitness

club or recreation center. Nor is there any other evidence that the

parties’ relative bargaining strengths were unfairly disparate so as

to weigh against enforcing the Agreement.

¶ 20 We therefore turn to the fourth prong of the Jones test —

whether the intention of the parties was expressed in clear and

unambiguous language.

b. The Fourth Jones Factor

¶ 21 The validity of exculpatory clauses releasing or waiving future

negligence claims usually turns on the fourth Jones factor —

whether the intention of the parties is expressed in clear and

unambiguous language. Wycoff, 251 P.3d at 1263 (applying the

Jones factors to a PLA claim). This case also turns on that factor.

¶ 22 The issue is not whether a detailed textual analysis would lead

a court to determine that the language, even if ambiguous,

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ultimately would bar the plaintiff’s claims. Instead, the language

must be clear and unambiguous and also “unequivocal” to be

enforceable. Chadwick, 100 P.3d at 467; see also Threadgill v.

Peabody Coal Co., 34 Colo. App. 203, 209, 526 P.2d 676, 679

(1974), cited with approval in Jones, 623 P.2d at 378.

¶ 23 We conclude that the Agreement fails this test for numerous

reasons.

¶ 24 First, as explained by the New York Court of Appeals, “a

provision that would exempt its drafter from any liability occasioned

by his fault should not compel resort to a magnifying glass and

lexicon.” Gross v. Sweet, 400 N.E.2d 306, 309 (N.Y. 1979), cited

with approval in Jones, 623 P.2d at 378. Here, the Agreement

consists of extremely dense fine print, for which a great many

people would require a magnifying glass or magnifying reading

glasses.

¶ 25 Second, the two clauses are replete with legal jargon, using

phrases and terms such as “affiliates, subsidiaries, successors, or

assigns”; “assumption of risk”; “inherent risk of injury”; “includes,

but is not limited to”; and “I agree to defend, indemnify and hold

Life Time Fitness harmless.” The use of such technical legal

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language militates against the conclusion that the release of liability

was clear and simple to a lay person.

¶ 26 Third, the first of the two clauses relied on by Life Time bears

the following heading: “under Chapter 458, 459, 460, or Chapter

461 ASSUMPTION OF RISK.” At oral argument, counsel for Life

Time conceded that the reference to multiple chapters was

ambiguous and confusing, and he could not explain to what the

chapters referred. Our research has not enlightened us on the

subject. Conscientious lay persons could reasonably have skipped

over the fine print appearing under that heading, believing it did not

apply to them because they would have no reason to understand

that chapters 458, 459, 460, or 461 had any relevance to their

situation. Thus, the assumption of risk heading was not clear and

unambiguous.

¶ 27 Fourth, the dominant focus of the Agreement is on the risks of

strenuous exercise and use of exercise equipment at the fitness

center:

• The opening paragraph of the Agreement contains the following

warning: “All members are strongly encouraged to have a

complete physical examination by a medical doctor prior to

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beginning any work out program or strenuous new activity. If I

have a history of heart disease, I agree to consult a physician

before becoming a Life Time Fitness member.”

• Under the confusing assumption of risk heading, the first

sentence states, “I understand that there is an inherent risk of

injury, whether caused by me or someone else, in the use of or

presence at a Life Time Fitness Center, the use of equipment and

services at a Life Time Fitness Center, and participation in Life

Time Fitness’ programs.”

• There then follows a listing of types of risks, including the use of

“indoor and outdoor pool areas with waterslides, a climbing wall

area, ball and racquet courts, cardiovascular and resistance

training equipment,” and other specified programs, as well as

“[i]njuries arising from the use of Life Time Fitness’ centers or

equipment” and from activities and programs sponsored by Life

Time; “[i]njuries or medical disorders resulting from exercise at a

Life Time Fitness center, including, but not limited to heart

attacks, strokes, heart stress, spr [sic] broken bones and torn

muscles or ligaments”; and “[i]njuries resulting from the actions

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taken or decisions made regarding medical or survival

procedures.”

¶ 28 Fifth, the term “inherent risk of injury” that appears in the

assumption of risk clause has been applied in various Colorado

statutes and case law to address waivers of liability only for

activities that are dangerous or potentially dangerous. Thus, the

General Assembly has provided for releases from liability in

circumstances such as activities involving horses and llamas,

section 13-21-119, C.R.S. 2016; being a spectator at baseball

games, section 13-21-120, C.R.S. 2016; agricultural recreation or

agritourism activities (including hunting, shooting, diving, and

operating a motorized recreational vehicle on or near agricultural

land), section 13-21-121, C.R.S. 2016; skiing, section 33-44-109,

C.R.S. 2016; and spaceflight activities, section 41-6-101, C.R.S.

2016. Significantly, not one of these statutory exemptions from

liability extends to the use of locker rooms, rest rooms, or dressing

rooms associated with these activities. Rather, the releases of

liability extend only to the dangerous or potentially dangerous

activities themselves.

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¶ 29 Colorado’s published cases concerning the term “inherent

risks” similarly concern dangerous or potentially dangerous

activities. For example, the term “inherent risks” has been

addressed in cases involving skiing, Graven v. Vail Assocs., Inc., 909

P.2d 514, 519 (Colo. 1995); horseback riding, Heil Valley Ranch,

Inc., 784 P.2d at 782; medical procedures or surgical techniques,

Mudd v. Dorr, 40 Colo. App. 74, 78-79, 574 P.2d 97, 101 (1977);

and attendance at roller hockey games, Teneyck v. Roller Hockey

Colo., Ltd., 10 P.3d 707, 710 (Colo. App. 2000). Thus, in reported

cases, the term “inherent risks” has been limited to dangerous or

potentially dangerous activities, rather than accidents occurring in

more common situations, such as using locker rooms.

¶ 30 In light of this statutory and case law backdrop, the use of the

inherent risk language in the assumption of risk clause, and the

Agreement’s focus on the use of exercise equipment and facilities

and physical injuries resulting from strenuous exercise, one could

reasonably conclude that by signing the Agreement he or she was

waiving claims based only on the inherent risks of injury related to

fitness activities, as opposed to washing one’s hands. Indeed, Stone

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so stated in her affidavit submitted in opposition to the motion for

summary judgment.

¶ 31 Sixth, Life Time contends that the only relevant language we

need consider is that set forth in the second exculpatory clause,

labeled “RELEASE OF LIABILITY.” That provision begins by stating

that “I waive any and all claims or actions that may arise against

Life Time . . . as a result of any such injury.” (Emphasis added.)

The quoted language, however, is the first use of the term “injury”

in the release of liability clause. So the scope of the release can be

determined only by referring back to the confusing assumption of

risk clause. It is not surprising then that Life Time’s counsel

characterized the release’s reference to “such injury” as “squirrely.”

In any event, all of the ambiguities and confusion in the

assumption of risk clause necessarily infect the release clause.

¶ 32 Seventh, the exculpatory clauses repeatedly use the phrases

“includes, but is not limited to” and “including and without

limitation,” as well as simply “including.” The repeated use of these

phrases makes the clauses more confusing, and the reader is left to

guess whether the phrases have different meanings. The problem is

compounded by conflicting views expressed by divisions of this

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court on whether the similar phrase “including, but not limited to”

is expansive or restrictive. Compare Maehal Enters., Inc. v. Thunder

Mountain Custom Cycles, Inc., 313 P.3d 584, 590 (Colo. App. 2011)

(declining to treat the phrase as restrictive and citing Bryan A.

Garner, A Dictionary of Modern Legal Usage 432 (2d ed. 1995)), with

Ridgeview Classical Sch. v. Poudre Sch. Dist., 214 P.3d 476, 483

(Colo. App. 2008) (declining to conclude that the phrase took the

statute out of the limiting rule of ejusdem generis). For purposes of

deciding this case we need not resolve this conflict; the relevance of

the conflict for present purposes is that it creates another

ambiguity.

¶ 33 That ambiguity — expansive versus restrictive — is critical

because nothing in the Agreement refers to risks of using sinks or

locker rooms. The assumption of risk clause refers to the “risk of

loss, theft or damage of personal property” for the member or her

guests while “using any lockers” at a Life Time fitness center. That

is quite a separate matter, however, from suffering a physical injury

in a locker room.

¶ 34 Significantly, when Life Time intends to exclude accidental

injuries occurring in locker rooms, it knows how to draft a clear

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waiver of liability doing so. In Geczi v. Lifetime Fitness, 973 N.E.2d

801, 803 (Ohio Ct. App. 2012), the plaintiff entered into a

membership agreement with Life Time in 2000 (eleven years before

Stone entered into the Agreement), which provided in relevant part:

[T]he undersigned agrees to specifically assume all risk of injury while using any of the Clubs[’] facilities, equipment, services or programs and hereby waives any and all claims or actions which may arise against LIFE TIME FITNESS or its owners and employees as a result of such injury. The risks include, but are not limited to . . . . (4) Accidental injuries within the facilities, including, but not limited to the locker rooms, . . . showers and dressing rooms.

Id. at 806. Life Time chose not to include similar language in the

Agreement signed by Stone.

c. The Agreement Is not Clear, Unambiguous, and Unequivocal

¶ 35 Based on the foregoing discussion, and after scrutinizing the

exculpatory clauses, we conclude that the Agreement uses excessive

legal jargon, is unnecessarily complex, and creates a likelihood of

confusion or failure of a party to recognize the full extent of the

release provisions. See Chadwick, 100 P.3d at 467. Accordingly,

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the Agreement does not clearly, unambiguously, and unequivocally

bar Stone’s PLA claim based on the injuries she alleges she

sustained after she washed her hands in the women’s locker room.

III. Conclusion

¶ 36 The judgment on Stone’s negligence claim is affirmed, the

judgment on her PLA claim is reversed, and the case is remanded

for further proceedings on that claim.

JUDGE TAUBMAN and JUDGE FOX concur.

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Appendix

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